Portugal / Supreme Court of Justice / 149/11.4YFLSB AA and BB v Superior Council of the Judiciary

Key facts of the case:

The appeal concerned a disciplinary measure imposed by the Superior Council of the Judiciary (Conselho Superior de Magistratura, CSM) to suspend from carrying out their duties. AA was suspended for a period of 100 days and BB for 120 days, both on the grounds that they had breached their “duty to uphold probity”. AA raised the possibility of submitting a plea to the Court of Justice for a preliminary ruling mainly because: a) owing to the fact that the punishment was an administrative act, the appeal should have gone through the Supreme Administrative Court and not the Supreme Court of Justice, thereby infringing Article 47 in the Charter and 6 (1) in the European Charter of Human Rights (ECHR); b) in not being heard before the punishment was applied Articles 41 and 48 (2) in the Charter were breached; c) there is a lack of conformity between Article 41 in the Charter and the situation calling for a law or the interpretation of a law which demands that the agents administering such a law, even if they are the accused, give their unconditional loyalty / honesty to their supervising body (the Superior Council of the Judiciary), whereby the coverage of this demand is so extensive as to oblige such agents to aid in their own self-incrimination. The Court deemed these arguments to be an objection. The Public Prosecution and the Superior Council of the Judiciary were both heard on the issue. The former's answer was that the process of issuing a preliminary ruling was not pertinent, while the latter concluded that there were insufficient grounds for making a preliminary ruling, mainly because the allegations that the rules governing European Law had been breached, were unfounded. Owing to the fact that the appellant requested the Court of Justice to make a preliminary ruling on the questions of law indicated, which queried whether the Statutes on Judicial Conduct and the Code on Criminal Procedure respected Community law, mainly the Charter and Article 6 of the ECHR, the question/objection that had to be decided upon concerned the pertinence of the request when taking into consideration Article 267 of the Treaty on the Functioning of the European Union, and Articles 51 and 52 of the Charter.

Paragraphs referring to EU Charter: 


The rules laid down in Articles 51 and 52 of the EU Charter of Fundamental Rights contain provisions with respect to the scope of applying Union law. Thus, Article 51, nº 1, reads: “The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. (…)” Article 52 specifies the scope and the interpretations of the rights and principles and says: “1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.” “2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.” “3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.” “4. Insofar as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.” “5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by Institutions and bodies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.” “6. Full account shall be taken of national laws and practices as specified in this Charter.” “7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.” “For its part, Article 267 in the Treaty on the Functioning of the European Union states: “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.” “Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court”. “As was stated in the judgement pertaining to this section of the dispute in terms of the same purpose and put forward by the same appellant on 21/03/2013 (Case No. 15/12.6YFLSB): "In order that EU law is applied, there has to be a connection between the question pending a decision and European Union Law.” “The Statutes on Judicial Conduct as well as Decree-Law 58/2008 of 9 September and the Code on Criminal Procedure do not primarily constitute Community law; they are not applications of European Union Law. Rather, in the Portuguese legal system, they are bound by the Constitution and are subordinate to national constitutional law.” “Therefore, there are no legal reasons to call upon the primacy of Community law in a preliminary ruling in order to determine any interpretation in the light of national law, taking into account the subsidiary nature of Community law as against national constitutional law” “Still referring to this point, the same reasons are given when fundamenting the preventative measure to suspend the effect of the dismissal as in Case no. 42/12.3YFLSB.” “The objection petitioning a preliminary ruling as laid down in Article 267 of the European Union Treaty is not applicable in this instance.” “The provisions stipulated in Articles 51 and 52 of the EU Charter of Fundamental Rights contain key-provisions that indicate the scope of application, both in terms of ratione persone (active and passive personal applicability) and the scope of ratione materiae.” “Indeed, the passive personal scope of the Statutes of Judicial Conduct are referred to in Article 51 (1), and merely address Union law. (‘only when they are applying it’).” “The question therefore arises of knowing whether Union law is still applicable when a national instancy leads to the derogations or exceptions that are based on protective clauses – for example, public health; safety; public order; or whether the exception, derogation or exemption effectively means that Union law still applies.” “And if Union law is not applicable, then the Statutes of Judicial Conduct are neither subordinate to the binding material of the Charter, nor, as a result, to its jurisdictional control based on its provisions.” “The laws in the Statutes of Judicial Conduct and the subsequent proceedings of the authorities are outside the scope of the Charter’s applicability, as the Charter is only applicable if there is some sort of direct or indirect connection with the scope of Union law application.” “The grid for interpreting Article 51 lies along the vertical division between the Union powers and the powers underlying the Statutes of Judicial Conduct, where the provision lays down that the Charter may not exert any kind of effect or impact on the division of powers between the Union and the Statutes of Judicial Conduct.” “This provision makes it so that the Charter may not act as legal grounds or as a basis on which to exercise Union powers in matters of fundamental rights, preventing or going against the materialisation of expansive measures.” “Apart from the normative statements about rights, the Charter contains Interpretative Declarations.” “Such interpretative contents, devised by the same authorities who drew up the Charter and which were published in the same formal system as the Charter, although in themselves, they do not have the force of the law, are certainly a valuable interpretative tool aimed at clarifying the Charter’s provisions.” “However, in resorting to another perspective involving enforcement or a legal review, it may be argued whether the Charter may be referred to, and where it is not possible to make a preliminary ruling on the interpretation (Article 267 in the EU Treaty) if the situation is not liable to the application of Union law.” “Therefore, the breaches that were pointed out concerning the EU Charter of Fundamental Rights do not constitute breaches in the European Union’s primary law.” “The internal rules disputed here are composed of statutory rules that were not formulated pursuant to the application of rules founded on primary European Union law, such as in the case of a directive. Therefore, they are not liable to be appreciated in conformity with the EU Charter of Fundamental Rights using the provisions laid down in Article 267 in the European Union Treaty because this would go against the provision laid down in Articles 51 and 52 in the EU Charter of Fundamental Rights itself.” “As a result, the legal tool involving a preliminary ruling may not be used to compare whether internal Portuguese law conforms with the Charter’s rules, but merely when this conformity has to do with EU primary law.” “This being the case, and without needing recourse to any other or more intricate considerations, the legal provision laid down in Article 267 in the EU Treaty is hereby dismissed”.

Deciding body (original language): 
Supremo Tribunal de Justiça